Monday, June 04, 2018

In 2007, Tommy said Agong can reject his appointment

Upon swearing in, one of the first of many immediate actions by PH’s Prime Minister Tun Dr Mahathir towards avenging his shame of losing out in UMNO and imprisoning former Prime Minister, Dato Najib Tun Abdul Razak, was to attempt the sacking of Attorney General, Tan Sri Apandi Ali.

It was his first step towards proving he is right in his cause celebre, 1MDB (and related to 1MDB) to seek removal of Najib.

Thus far, Najib is not yet imprisoned as promise by Dato Mukhriz in his campaign trail. Claims Najib should be charged does not seem so as new MACC Chief claim he need few more statements. Former AG Tan Sri Abu Talib said need more than 100 days to investigate.

Be it himself or any other parties – local or abroad, including US Department of Justice - all claims on 1MDB remained unproven allegations.

The decisions in the Singapore court were banking laws and regulations. Forfeiture laws applied by DOJ in June 2017 that shock Malaysia is still neither civil or criminal judgement on anyone as it only involves properties and still on-going in court.

Though it was one of the first action taken, Mahathir has still not found a resolution. Apandi remains the lawfully and constitutionally appointed AG.

Talk is Tommy Thomas appointment as AG as agreed by PH is still up in limbo as Agong rejected his name.

It is heard Agong refuse to meet Mahathir, thus no Wednesday “mengadap” and he is disallowed entry inside the istana, thus meet Anwar after the pardon and audience with Agong outside.

Mahathir is adamant it is Tommy Thomas and will only suggest one name. The appointment albeit removal of judges and AG is at "the pleasure" of the Agong.

Mahathir could not get Apandi to resign in the similar manner MACC then Chief Commissioner to resign.

Will there be yet another royal-linked issue on the constitution for another precedent setting decision usually dubbed as constitutional crisis?

There have been many names being bandied about to replace Apandi.

Recently, the name Tan Sri Zainon Ali came up. It is heard someone destined to be AG but denied, Dato Yusof Zainal Abidin was offered but declined. He turned around to represent Dato Najib to snipe back at his former superior, Tan Sri Gani Patail.

There was also Mahathir-friendly and former Federal Court Judge, Tan Sri Kadir Sulaiman and long bandied about name of Ambiga. Not forgetting, Anwar’s lawyer cum former Federal Court judge, Dato Gopal Sri Ram.

It was The Malaysia Insiders that broke the news that Tommy Thomas will be presented to the Agong.

Apparently, the name Tommy Thomas is not accepted well by Agong for his views and inclination on Syariah law. As Facebooker Azmi Arshad highlighted in his FB here, the Agong is bound by his oath to defend the status of Islam.

Tommy made comments claiming Malaysia is not an Islamic nation, disputed the court decision on kalimah Allah, and more controversial, he said pointless to change any law unless one change the government. [That was The Unspinners leading points to reject Tommy HERE].

There are other controversies with the constitutional expert, Tommy Thomas like for taking Lim Guan Eng and Chin Peng as clients. It should not be a major concern for lawyers as he is entitled to take up any case.

That is what Mahathir said too. He withdraw, restrain himself and assign others the authority (since Gani claim to have done in the second sodomy case of Anwar) to decide on Guan Eng’s corruption case.

Politically, it does his impartiality in question as much as Gani was questioned before and PH promise for a “clean” and transparent government.

Taking up Chin Peng’s case was a sore point among veterans and his patriotism was in question. However, it is nothing to lawyers in the right of citizens to get legal representation. The fact that Tommy had once migrated to Canada citing his disgust with the country could put his patriotism under scrutiny.

Nevertheless, Tommy is known to be quite “stubborn” as one corporate player who was on the other side in the court room described. He saw him honourably back down and advise another lawyer, who replaced him upon withdrawing, to also backdown on a proven issue of principle.

Tommy is no stooge of the Bar Council and had openly disagree with Bar’s position on issues.

One issue highlighted by one “PH Supporter” as viral through WA is PH has broken on another of their manifesto. They promised that AG should come from among elected MPs.

He was also uncomfortable with the appointment of Tommy will set the PH government on a collision course with the royal institution and questioned the change brought by PH as too radical and too fast as jolting the system and country too much.

So, does the Agong has the power to reject any advise from the Prime Minister including, appointment of himself as AG?

Tommy did say before that the Sultan has no power (read MT HERE). On the matter to reject appointments, Facebooker Salahuddin Hisham HERE reminded he said Agong has the power:

The power of Rulers in rejecting appointment

By Tommy Thomas himself, written in 2007.

"Hence, the legal consequences of failure to consult the Conference of Rulers or the Conference not approving a candidate submitted by the Executive are not specified therein, thereby suggesting that all the authorities referred to in that Article must approve a particular candidate.

Thus, in my opinion, the Conference of Rulers is entitled to reject a candidate for appointment submitted to it if a majority of Rulers deem him unsuitable for the constitutional office of judge.

What may be beyond their constitutional right to be consulted is to repeatedly reject several candidates for a single position which would then remain vacant for a substantial period of time resulting in a constitutional impasse.

No doubt, the good sense of those involved in the selection process would ensure that such an eventuality does not occur.

The checks and balances system under Article 122 B(1) was put in place so that no one authority has sole monopoly over judicial appointments. In order for the constitutional system to work efficaciously some “give and take” has to take place.

Consensus is the objective; not brushing aside of the views of the major actors.

The importance of the constitutional right of the Conference of Rulers to be consulted on judicial appointments under Article 122 B(1) is further demonstrated by Article 38 (4) which declares that no law directly affecting “the privileges, position, honour or dignities of the Rulers shall be passed without the consent of the Conference of Rulers”.

In my opinion, the right to be consulted under Article 122 B(1) constitutes a “privilege” or “position” within the meaning of Article 38 (6).

Hence, the right of the Conference of Rulers to be consulted thereunder cannot be removed or diminished without their consent."

Tommy Thomas
5th September 2007

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Another point of law in which Tommy differ from partisan inclined, Bar Council. [Read HERE].

The palace has explained their position now:

The Royal Council will convene a meeting on Tuesday to discuss the appointment and likely other matters with regard to the current executive impositions on the rights and power of the sovereign.